The persistence of pre-Booker precedents in a post-Booker world

The Sixth Circuit’s work today in US v. Blue, No. 07-5296 (6th Cir. March 9, 2009) (available here), provides yet another example that, even years after the Bookerdecision, many sentencings and appeals march forward as if the pre-Booker world was still in place.  The Blue decision does not really break any new ground in rejecting an appeal of a district court’s refusal to depart for substantial assistance absent a government motion for such a departure.  But the start of the panel’s analysis provides an example of how hard it has been to get lawyers to fully inculcate the import and impact of Booker:

We must begin by situating Blue’s appeal in the context of appellate review of sentencing post-Booker— a task that, regrettably, the parties did not undertake in their briefs.[FN1]

[FN1] The government cites United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000) — a case that pre-dates Booker by five years — for the proposition that we should “review the district court’s interpretation of the Sentencing Guidelines de novo.”  And Blue’s counsel fares no better by citing United States v. Hawkins, 274 F.3d 420 (6th Cir. 2001).  By the time the parties filed their appellate briefs with this Court in late 2007, Bookerhad been on the books for over two years. This Court expresses its fervent hope that the parties’ persistent recitation of pre-Booker cases is not evidence that counsel are unaware that the appellate standard for sentencing review now focuses on “reasonableness,” Booker, 543 U.S. at 262; Rita, 127 S.Ct. at 2464.